Class Action Lawsuits, Personal Injury

Charges Laid Against Calgary Daycares Where E. Coli Outbreak Occurred

Written on behalf of Cuming & Gillespie LLP Published on October 11, 2023
a child with multicolour finger paint on hands

On September 27, the City of Calgary announced that Fueling Minds Inc. had been charged with operating a food services business without a business license. The corporation and two directors were charged with 12 counts under the Business Licensing Bylaw. If convicted on all charges, the fines may be as much as $120,000. 

Fueling Minds is provincially licensed under the Early Learning and Child Care Act to operate a child care facility. The municipal charges against the company result from Fueling Minds running a catering company that provides third-party food services to five daycares owned by other operators. These business activities are outside the scope of its provincial child care facility license and instead require a municipal business license. 

To qualify for the necessary Food Services – Business License, Fueling Minds would have had to undergo a health inspection, fire inspection and obtain land use approvals.

Provincial Investigation Continues

Alberta’s Chief Medical Officer of Health, Dr. Mark Joffe, has identified the likely cause of the outbreak as meatloaf and vegan loaf meals served on Aug. 29. He cautioned that this could not be confirmed because samples of the meatloaf and vegan loaf cannot be tested. After all, the meals had already been eaten or discarded.

Alberta Health Services (AHS) is continuing its investigation into the cause of the E. coli outbreak. Dr. Joffe reported that the investigation has included testing 44 food samples and conducting hundreds of interviews with daycare staff and parents.

The strain of bacteria that caused the outbreak has been identified as a Shiga toxin-producing E. coli (STEC E. coli). In our recent blog post, we noted that Dr. Cora Constantinescu, pediatrician and infectious disease specialist at the Alberta Children’s Hospital, has identified this strain as particularly dangerous for children under five years old due to its ability to cause hemolytic uremic syndrome. Four children remain in hospital due to this outbreak, with 351 cases being identified.

Premier Danielle Smith stated in a press briefing that she had tasked Minister of Health Adriana LaGrange and Minister of Child and Family Services Searle Turton with reviewing food safety in kitchens that service licensed child care facilities.

Panel to Conduct External Review

In addition to the ongoing AHS investigation and ministerial reviews, former Calgary police chief Rick Hanson has been appointed to convene an external panel to review legislation, regulations and policies related to food handling and safety. The panel will include child care facility operators, food service operators, and food safety and public health experts.

The review panel does not have a set timeline, but Premier Danielle Smith suggested it should be a matter of “months, not years.” She also hoped to receive monthly updates and implement interim recommendations as necessary rather than waiting for a final report. Premier Smith has confirmed that the panel’s findings and recommendations will be publicized.  

What Impact Do Government Investigations and Charges Have On Civil Litigation and Remedies?

Cuming & Gillespie LLP has been retained to pursue a class action lawsuit against Fueling Minds and other defendants seeking remedies for the harm resulting from their negligent actions. 

The provincial investigation into the defendants’ actions and the charges brought against them by the City of Calgary does not impede or prohibit the plaintiffs in civil litigation from seeking remedies in court. These developments may ultimately inform the court’s findings regarding product liability. 

Manufacturers and distributors are obligated to ensure the safety of their products. This includes businesses that provide catering and other food services. One of the legal requirements for a finding of negligence will be that the defendant has breached the required standard of care. Precisely what this standard is will depend on the facts of the case. However, the general test is what a reasonable person would do under the circumstances. Regulatory requirements and industry practices assist the court in defining this standard.

Government Findings on The Defendants’ Actions

Government findings regarding the business practices and actions of the defendants may also assist the court in determining whether the defendants have breached the required standard of care. For example, the court would undoubtedly ask whether it was reasonable for the defendant to operate a catering business without a business license, as Fueling Minds has been charged with doing.

The ongoing AHS investigation may reveal additional facts or circumstances relating to the defendant’s business practices that breach provincial regulations. Similarly, the related internal and external reviews of food safety regulations, policies and industry practices may produce findings relevant to establishing the standard of care and whether the defendant’s actions breached this standard.

Standard of Proof in Civil Litigation

The AHS has now identified meatloaf and vegan loaf as likely sources of the E. coli bacteria. Dr. Joffe stated the meals in question had “extremely high odds of being the source of the infection” but clarified that they didn’t know for sure because the items had been eaten or discarded and, therefore, can’t be tested. Does this mean liability can’t be found in court? 

The standard of proof in civil litigation relating to negligence is a “balance of probabilities.” In essence, the question is whether something is more probable than not. Therefore, the fact that the AHS cannot conclude with absolute certainty that the meatloaf was the source of the bacteria will not be fatal to the negligence claim. 

On the contrary, the findings of rigorous government investigations and public inquiries may be very helpful and persuasive in court.

The trusted personal injury lawyers at Cuming & Gillespie LLP help clients who have sustained injuries or losses due to product liability issues, including food-borne illness. If you or a loved one have been impacted by the recent E. Coli outbreak in Calgary, it is important to speak with a personal injury lawyer as soon as possible. 

Further, contacting the team at Cuming & Gillespie LLP is important if you wish to join the class action lawsuit. After a product liability incident, it can be difficult to know what steps to take, so we work closely with our clients throughout the claims process and litigation. To speak with a team member and learn more about how we can assist you, contact us online or call our office at 403-571-0555.